The Hague Convention has been adopted in some 84 countries and seeks to ensure that any child who is under the age of 16 years of age and who has been abducted or wrongfully removed from his or her country is returned to it. Its implementation in Irish Law is under the Child Abduction and Enforcement of Custody Orders Act, 1991
In the main the function of the convention is to seek the return of children to their habitual place of residence from some other country to which they have been brought and in which they are being detained.
For the purposes of the Convention a child means a person of any nationality, so long as he is under the age of 16 years of age and has not the right to decide on his own place of residence under the law of his habitual residence, the law of his nationality or the internal law of the State addressed. The usage in the act of the term "child abduction" is not particularly helpful because in most cases children are brought from one jurisdiction to another by one of their parents, or perhaps their guardians to whom their care has been entrusted.
A child's removal or retention is considered to be wrongful if it is in breach of the custody rights of a person or an institution which may have been granted custody rights, where those custody rights have been exercised in the State of habitual residence of that person.
Each country under the Convention designates a Central Authority which will deal with other Central Authorities to procure the return of the child. In Ireland this function is carried out by the Minister for Justice. In practice what happens is that if a child is abducted from its habitual place of residence to another country where it is now being detained, the Minister for Justice here contacts the Central Authority in the country to which the child has been removed with a view to seeking the child's return. Central Authorities are obliged to co-operate with one another and to take immediate steps to discover the whereabouts of a child who has been wrongfully removed or retained and to provide such administrative arrangements as may be necessary and appropriate to secure the safe return of the child. Under Article 8 any person institution or body claiming that a child has been removed or retained in breach of custody rights may apply either to the Central Authority of the child's habitual residence or the Central Authority of any other Contracting State to the Convention for assistance in securing the return of the child.
In cases where a child has been abducted an applicant who has a right to free legal aid and the applicant should then contact a solicitor or a law centre who will then make an application to the High Court for the return of the child. The High Court is obliged under Article 11 of Regulation 2201/2003 to have court procedures which are the most expeditious procedures available in national law so as to ensure there is no delay in dealing with a person's application, and the Court is obliged to issue its judgment within 6 weeks normally, except where delay is unavoidably encountered.
Under Article 11(2) of Regulation 2201/2203 a child who is abducted is given the right to be heard in any proceedings unless this would be inappropriate having regard to his or her age or degree of maturity. In practice children who are 8 years or older are interviewed by a child psychologist or social worker or some other person who has experience in dealing with children. This person then prepares a report for the court which is then sent to both parties. Following the report either party can request the person who prepared the report to be available in court for cross-examination.
At the core of the Convention is the basic premise that any child who has been wrongfully removed in respect of whom an application has been made within one year of that child's removal, must be returned to the country of habitual residence. Furthermore, Article 12 imposes a mandatory obligation to do so. The rationale for this is simply that the courts in a child's country of habitual residence are seen as the most appropriate forum for determining custodial and other disputes and ultimately best placed to act in the child's best interests where there are disputes between the child's parents.
There are however some exceptions to Article 12 which imposes a mandatory obligation on the courts to return a child which are dealt with in Article 13. The exceptions are as follows:
- The rights of custody were not actually being exercised at the time of removal or retention
- The applicant consented to or acquiesced in the removal or retention
- That the return of the child would expose the child to physical or psychological harm or otherwise expose the child to an intolerable situation.
- Where the child objects to being returned and has reached an age and level of maturity which is appropriate to take account of his or her views
- Where it is established that 12 months have elapsed before the date of the application and the child is now settled in a new environment.
It should be pointed out that even where the above exceptions have been established the courts still have a discretion to order the child's return and will ultimately act in what it feels is in the best interests of the child.
Many cases before the courts are resolved without full hearing where the parties are able to agree terms and put in place orders under the Guardianship of Infants Act, 1964 and the Family Law Act 1995 affecting the child's welfare. In cases where proceedings have already been started in the High Court for a child's return or indeed been initiated in some other court seeking custody orders in the District or Circuit Courts, then these proceedings must be stayed once an application has been made under the Convention.